Libya: A Non-Hostile War

Only one spectacle in recent weeks proved more nauseating than the Commander-in-Chief fine-tuning the Afghan drawdown to suit his re-election timetable. It was Barack Obama’s attempt to justify continued American participation in the illegal and unnecessary war in Libya by claiming that—far from being a war—it does not even merit the designation of hostilities.

Back in 1998 Bill Clinton offered an existentialist explanation to the Grand Jury of why he was not lying when he told his aides that “there’s nothing going on” between him and Monica Lewinsky: “It depends on what the meaning of the word ‘is’ is.” For sheer presidential sophistry this gem stood unassailable until June 15, when in reply to House Speaker John Boehner’s letter the White House made a number of remarkable assertions about the Libyan intervention:

The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of “hostilities” contemplated by the Resolution’s 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force.

“U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces,” Obama’s legal team added, “nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.” In other words, according to the White House, if the Libyan government forces were able to shoot back as they are bombed, we would have the kind of “hostilities” to which the 60-day limit would apply; but since they have no means of fighting back—since all the fire goes one way, with no “exchanges with hostile forces”—the War Powers Resolution does not apply. Oddly enough, it did apply in the early days of the Libyan intervention, when the Administration cited the War Powers Act as the legal basis of its ability to conduct operations for 60 days without first seeking a declaration of war from Congress.

Denying that the United States is engaged in “hostilities” in Libya is patently absurd; Sen. Dick Durbin (D-IL) was right to declare that “it doesn’t pass a straight-face test.” The claim that there is no “significant chance of escalation” is refuted by the evidence of missile strikes against residential neighborhoods, as the list of viable military targets is exhausted. And, as CNN legal analyst Mary Ellen O’Connell pointed out, “the U.S. had better be involved in hostilities or else our forces are engaged in unlawful killing.” They have deployed manned and unmanned aircraft to fire missiles and drop bombs. They are the type of weapons only permissible for use in armed conflict hostilities. If using such weapons does not constitute hostilities, in the course of which killing without warning is considered justified, then the result of their use is murder.

A hundred days into the war, the justification for the Libyan intervention remains unclear. The UN Security Council Resolution 1973 authorized military action “to protect civilians and civilian populated areas under threat of attack.” A week into the operation the White House strongly denied that regime change is part of its mission in Libya. Six days later, on March 28, Obama declared that the intervention was necessary so that “democratic impulses” are not “eclipsed by the darkest form of dictatorship.” So it was about spreading democracy, after all—but in the same address the President denied this by saying that “broadening our military mission to include regime change would be a mistake.”

Within days, however, American cruise missiles were launched against Gaddafy’s compounds with the obvious intention of killing him and thus deciding the issue in favor of the rebels. The objective of removing him from power, once openly acknowledged, soon became non-negotiable. “Would this be an example of a President misleading the nation into an (illegal) war? Or did the goal of the war radically change oh-so-unexpectedly a mere few weeks after it began?” wondered Glenn Greenwald in Salon.com on June 25. “Everyone can make up their own mind about which is more likely.”

Many members of Congress did just that on June 24 by rejecting the poisoned chalice in the form of a misnamed “de-funding” bill. In fact that bill would have stopped spending for some war purposes, but explicitly authorized it for others. That is why dozens of anti-Libya-war members in both parties voted against the “de-funding” bill. Had it passed, the White House legal alchemists would have used it to claim that the Congressional approval of some funds for the Libyan operation was tantamount to its effective authorization of the war itself. As Greenwald points out, the outcome was no victory for Obama:

A particularly galling reason for what the President is doing there was cited by the outgoing Defense Secretary Robert Gates: intervention in Libya “was considered a vital interest by some of our closest allies… that have come to our support and assistance in Afghanistan.” In other words, America was obliged to attack Libya not because that country threatened U.S. security but because the politicians in Paris and London decided that it would be a good idea—and America owed them one for helping out in Kandahar. By the same token, the U.S. Air Force should be on standby whenever one or another American ally from the Coalition_of_the_Willing is in need of some aerial firepower.

On balance, the most harmful consequence of our “engagement” with Libya, from the standpoint of the American interest, is the brazen manner Obama and his legal team have deployed in evading the strictures of the War Powers Resolution of 1973. The White House claims not only that U.S. action in Libya is made legitimate by the United Nations, but that such UN authorization per se makes Congressional approval unnecessary. This is some light years from candidate Obama declaring, in 2008, that “the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

The claim that a war involving the United States can be “legitimated” by a multinational agency—the UN, or NATO, or the Arab League—is legally absurd. It is also immoral and potentially treasonous. It opens the way to any number of future “engagements” which bear no relevance to American interests, security, or welfare.